Welsh Ministers (Respondent) v PJ (Appellant) - [2018] UKSC 66

THE COURT ORDERED that no one shall publish or reveal the name or address of the Appellant who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of the Appellant or of any member of his family in connection with these proceedings.

Michaelmas Term

[2018] UKSC 66

On appeal from: [2017] EWCA Civ 194

JUDGMENT

Welsh Ministers (Respondent) v PJ (Appellant)

before

Lady Hale, President

Lord Kerr
Lord Wilson
Lady Black
Lord Lloyd-Jones

JUDGMENT GIVEN ON

17 December 2018

Heard on 22 October 2018

Appellant Respondent

Jenni Richards QC Richard Gordon QC

Peter Mant Amy Street
Stephanie David

(Instructed by GHP Legal

(Instructed by Blake

(Wrexham)) Morgan LLP (Cardiff))
Intervener
(Mind)

Aswini Weereratne QC

Sophy Miles
Gemma Daly

(Instructed by Mind)

LADY HALE: (with whom Lord Kerr, Lord Wilson, Lady Black and Lord
Lloyd-Jones agree)

1. In 2007, the Mental Health Act 1983 (the MHA) was amended to introduce a new form of order, a community treatment order (a CTO). This was designed so that patients compulsorily detained in hospital for treatment might be released into the community by their responsible clinician (RC) but subject to conditions which would support their continuing to receive the treatment they needed. The simple question in this case is whether the RC can impose conditions in a CTO which amount to depriving the patient of his or her liberty, within the meaning of article 5 of the European Convention on Human Rights. The same question has arisen in the case of MM v Secretary of State for Justice [2018] UKSC 60, in relation to the conditions which may be imposed upon a restricted patient who is conditionally discharged from hospital either by a tribunal or by the Secretary of State for Justice. The two cases were heard and determined together in the Court of Appeal: M v Secretary of State for Justice, J v Welsh Ministers [2017] EWCA Civ 194; [2017] 1 WLR 4681. However, the statutory regime governing the conditional discharge of restricted patients is quite different from the statutory regime governing CTOs for non-restricted patients. Accordingly, we have heard the cases separately and are giving judgment separately, while of course seeking to adopt a consistent approach to the principles involved. Our conclusion, differing from the Court of Appeal, is that under neither regime is it permissible to impose conditions which amount to a deprivation of liberty.

The facts

2. The patient, PJ, is 47 years old. According to his RC when making the CTO

in 2011, he “has mild to borderline learning disability … He has also been assessed

recently as having difficulties which fall within the autistic spectrum. This has been accompanied by abnormally aggressive and seriously irresponsible behaviour

consisting of violent and sexual offending.” That wording was no doubt chosen

because a person with a learning disability cannot be compulsorily admitted to

hospital for more than a short time or made the subject of a CTO…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] UKSC 66
Decision Date

CaseChat Overview and Summary

In the case of Welsh Ministers (Respondent) v PJ (Appellant) [2018] UKSC 66, the Supreme Court was asked to consider whether a responsible clinician can impose conditions in a community treatment order (CTO) that amount to depriving the patient of their liberty, within the meaning of article 5 of the European Convention on Human Rights. The patient, PJ, had been subject to a CTO since 2011, which included conditions that restricted his freedom of movement. The Court of Appeal had previously held that the responsible clinician could impose such conditions. However, the Supreme Court disagreed, finding that the Mental Health Act 1983 does not grant the responsible clinician the power to impose conditions that deprive a patient of their liberty. The Court held that to deprive a person of their liberty is to interfere with a fundamental right, and a power contained in general words cannot be construed so as to interfere with fundamental rights unless there is clear and necessary implication to the contrary. As the Act does not provide such implication, the responsible clinician cannot impose conditions that amount to a deprivation of liberty. The Court also clarified that if the Mental Health Review Tribunal finds that a patient is being unlawfully deprived of their liberty, it must discharge the patient.

Orders